William Wilcox Mfg. Co. v. Brazos

• Decision Date: 20 December 1901
• Citation: 74 Conn. 208,50 A. 722
• Court: Connecticut Supreme Court
• Parties: WILLIAM WILCOX MFG. CO. v. BRAZOS.

50 A. 722

74 Conn. 208

WILLIAM WILCOX MFG. CO.

v. BRAZOS.

Supreme Court of Errors of Connecticut.

Dec. 20, 1901.

Appeal from superior court, Middlesex county; Alberto T. Roraback, Judge.

Action by the William Wilcox Manufacturing Company against Antoine Brazos. From an order overruling a demurrer to defendant's answer, and from a judgment in favor of defendant, plaintiff appeals. Affirmed.

The amended complaint alleged that the plaintiff was the owner of a factory and water power, and that on December 25, 1895, the defendant and his three sons, who were partners, built a dam for the plaintiff company; that on April 16, 1896, when said partners claimed that the dam was finished, and before the plaintiff had approved and accepted it, the defendant requested payment of the balance of the contract price, $1,000, claiming that it was then due; that said sum was not then due, and that on said day the defendant promised that if the plaintiff would pay to said partners said sum of $1,000 immediately, and before the plaintiff inspected the dam, he (the defendant) would build another dam in the same place, which should be constructed in a lawful and workmanlike manner, in the event the dam already built should be carried away or destroyed by force of water within 10 years from said date. A copy of the alleged agreement, made a part of the complaint as an exhibit, contained a bill or statement, under the date of April 16, 1896, showing the balance due from the plaintiff to said partners under the agreement for building the dam to be $1,002.70, following which was an agreement dated April 10, 1896, signed by the defendant, the material parts of which are as follows: "The above bill for building wall and dam is paid with the proviso and agreement that I do by this guaranty the said wall and dam to stand for ten years from the date of this bill, or otherwise, if said wall and dam fails thus to stand, I will, upon so being notified, rebuild it, at once: provided, however, that this guaranty is against damage by water only, or from causes occasioned by water. * * * Received payment in full of all demands, and under the agreement as stated above." The complaint further alleged that the plaintiff, in consideration thereof, on said day paid to said firm of A. Brazos & Sons said $1,000; that on July 30, 1897, said dam was carried away and destroyed by force of water, and by the natural flow thereof; that on the same day "the plaintiff notified the defendant of the destruction of said wall and dam, and requested him to rebuild the same according to his said agreement, which he has ever since neglected and refused to do." The complaint demanded $8,000 damages. By his answer the defendant admitted the building of said dam as alleged, and the making of the agreement contained in said exhibit, and, in effect, denied the remaining allegations of the complaint. Paragraph 4 of the answer alleged that the dam built for the plaintiff was built upon plans and specifications made and furnished by the plaintiff pursuant to a written proposal made by said A. Brazos & Sons, and accepted by the plaintiff. The remaining paragraphs of the answer were as follows: "(5) Said dam was constructed in a locality where the life or property of other persons than the plaintiff were endangered through the insufficiency of said dam. (0) Said plans and specifications for said dam had not been submitted by the plaintiff to a member of the board of civil engineers having the supervision of dams and reservoirs as required by law, and said dam had not been inspected and approved as required by law. (7) The original writing signed by the defendant, and of which Exhibit B, annexed to paragraph fifth of plaintiff's complaint, purports to be a copy, is based upon, connected with, and supplemental to said original contract set forth in paragraph fourth of this answer, and in Exhibit A thereto annexed. (8) Said dam and wall were damaged and failed to stand by reason of the defective plans thereof made and furnished by the plaintiff, and by reason of the insufficient and defective stone and material furnished and required by the plaintiff to be used in the construction thereof." The plaintiff denied paragraph 7 of the answer, and demurred to paragraphs 4, 5, 6, and 8 upon the ground, in substance, that the facts alleged in said paragraphs constituted no defense to the action, and were immaterial and irrelevant. The court having overruled said demurrer, the plaintiff denied said paragraphs. Upon the trial of said Issues the court found that the plans for the dam built by A. Brazos & Sons were furnished by the plaintiff; that they were of improper and unsuitable dimensions, being 28 feet high, and but 7 feet thick at the bottom and 3 feet at the top, and that the materials furnished by the plaintiff were in an improper and defective condition, that the $1,000 was justly due Brazos & Sons when payment of the same was demanded by the defendant, but that the plaintiff, upon the ground that the work was not performed satisfactorily, refused payment of said sum until the defendant should give a written guaranty that the dam would stand for 10 years, whereupon the written agreement sued upon was given, and the plaintiff paid said $1,000; that the dam was carried away by water, by reason of the improper plans and defective materials furnished by the plaintiff; that immediately thereafter the plaintiff gave to A. Brazos & Sons the following written notice: "Pursuant to your agreement with us under date of April 16th, 1890, you are hereby notified that the dam built by you for this company (William Wilcox Manufacturing Company) under contract of December 22d, 1895, is not longer standing. Said dam is now overthrown. This occurred on the 30th day of July, 1897, caused by force of water;" that to said notice the defendant on the same day replied in writing to the plaintiff as follows: "As I am advised your dam cannot be rebuilt according to the old plan and specifications, immediately upon receipt of plans and specifications prepared in accordance with section 3699 of the General Statutes of this state (Revision of 1888), and as required by ...